Are you curious about what Supreme Court "cert pool" memos look like? Do you have a favorite former clerk whose pool memos you have always wanted to read? Did you file a cert petition 20 years ago that you still feel was wrongly denied, and do you want to know why? Do you want to read snarky annotations from Blackmun clerks about pool memos written by conservative clerks?

Now, thanks to lawprof Lee Epstein, you can read as many cert pool memos as you want from the Blackmun archives, covering 1986 to 1994, all in .pdf format. Serious Supreme Court geeks will get a kick out of this, in part because many of the pool memo authors are now familiar names. For example, in the October Term 1993 files you'll find pool memos from co-bloggers Eugene and David P., Solicitor General Paul Clement, DC Circuit Judge Brett Kavanaugh, 10th Circuit Judge Neil Gorsuch, and several other big wigs. Thanks to How Appealing for the link.

Running through a handful of the OT93s looking for Volokh or Clement memoes, it was very disturbing to see at Docket No. 93-4 a case I had briefly worked on as a summer associate; that was probably the only Supreme Court case I worked on that summer. Surprising number of typos in that cert memo, and it wasn't clear if all the corrections came from an exceptionally nerdy Blackmun clerk or from some other sort.

Ted,
It looks like the Blackmun clerk was likely Michelle Alexander (based on the "MA" notation on the top left of the memo). You can trace back a lot of remarks to clerks. Check out the wikipedia listing of former clerks.

There aren't actually that many typos in the 93-4 memo; I counted only three or four. Most of the written edits on the memo are stylistic, such as the insertion of articles where the poolwriter, following a shorthand format, eliminated them. It's well known that Justice Blackmun was a stickler for proper spelling, grammar, and syntax, so those markups probably reflect his own personal disdain for particular shorthand techniques. Alternatively, they may be the work of his clerks, who were perhaps instructed to "clean up" memos before passing them on to Justice Blackmun, thus ensuring that he did not expend too much effort harrumphing over stylistic peccadillos.

Speaking from experience, extraordinarily few pool memos are 20 pages long, as that one is (it's probably much longer, since the discussion section is inexplicably cut off). Ideally there should be zero typos in any memo, but three or four in a 20-page memo written in a week (in addition to all of a clerk's other work) is not really that bad. In addition, the memo indisputably covered the case in a very thorough manner (as far as pool memos go). There's really nothing "disturbing" about how the clerk treated the case. Most lawyers should be so lucky as to get that much attention paid to his or her case. If anything, the memo is way too long -- especially for an ultimate recommendation of deny.

Christopher M., when you do research in an archive, you typically are not allowed to use a pagefeed scanner, and must snap digital photos of each page.

This is an improvement over the older system, which required you to stand in line for a xerox machine.

I too found it interesting that Blackmun wanted to know, for each cert pool clerk/author, where the person went to law school and for whom s/he had clerked in a lower court. And I notice that my law school classmate Bob Giuffra is always labelled "Federalist" too.

Will they let you bring in a copy stand? While I am sure it was a lot of work, the photographs look really bad.

If nothing else, the photography could have held the camera vertically, in portrait mode, so that we wouldn't have quite so much image space dedicated to the table. Or, in at least one case, the photographer's finger.

This just reinforces my belief that the Cert Pool is a horrible construct. The motive to recommend a denial of cert is too strong. I've heard that clerks are laughed at and mocked by other clerks when they recommend a grant, and nothing is more insulting and embarassing to recommend a grant that is ultimately denied (good chance of that). So, all of them are either "deny" or "no recommendation" to stick with the status quo.

EricMuller -- I don't think there is anything "petty" about wanting to know the school, circuit judge, Supreme Court Justice and first name of the other clerks. It probably helped Blackmun remember who they were, and if he didn't know who they were, it gave him a tiny bit of info about their possible perspective (though of course, your lower court judge says very, very little about your politics in most instances).

In another inversion, Justice Harry Blackmun, a genuine eccentric, left the opinion-writing to his clerks after his first years on the Court and concentrated on cite-checking their drafts. He was by all accounts an awesome cite-checker.

"Typos" was a misstatement; I meant "corrections," and it's stunning that Blackmun was wasting his time inserting articles into cert pool memo shorthand, but not inconsistent with Posner's portrayal in his account of Blackmun as the worst justice.

Hah, in 91-1135 the clerk notes that petitioner is represented by Robert Bork, a "noted tax expert." You would have thought that someone geeky enough to be a SCOTUS clerk wouldn't mischaracterize Bork as a tax expert (looks like Blackmun, understandably, put a "?" in the margin).

* It would be great if WL/Lexis could contact Prof. Epstein and then put minions on this so that the memos are searchable. I'd be really curious to see what the cert pool memos look like in certain types of cases... particularly patent cases and abortion cases (each for different reasons, obviously).

* The few memos I've skimmed from this site are longer and more thorough than I'd always assumed these things were. If what I've seen is representative, then I have a higher opinion than I had before of how closely the Justices look at each cert petition.

* I wouldn't read much into what Justice Blackmun or his clerks scrawl on these things. Everyone has their own idiosyncratic way of writing on things they read. On the typos, it wouldn't surprise me if Justice Blackmun's mind was simply better at processing grammatical prose than abbreviated prose, and he or his clerks would scrawl "corrections" on the pages to make them easier to read. On the background information on the authors, I think it's normal to wonder about who the author is whenever anything about a memo strikes a Justice as odd. Even if you think that the clerks were all honorable and above reproach, everyone has tendencies and biases.

the worst thing about this is that it provides more fodder for dishonest groups like PFAW. With 90+% of the memos recommending denials, there'll be lots of opportunities to claim that nominee X was insensitive to petitioner Y. They can even use his own words.

Also, given the shortness of the memos, PFAW can give a lengthy summary of the sympathetic plight of some poor petitioner and then claim that "nominee X gave the petitioner's claims the back of the hand. The injustices at stake weren't bad enough to get nominee X's attention, who found it sufficient to say that there was no split of authority in the courts of appeals."